Tuesday, June 25, 2013

The Supreme Court decision striking down the parts of the Voting Rights Act that make it useful doesn’t exactly declare that racism in America is over. Rather, it declares that collective justice in America is over and individualism is supreme (unless you’re a corporation, of course, those entities are golden). People can still sue states under the VRA to address discrimination – one at a time, as individuals. Because that’ll totally be effective in addressing institutional racism.

It’s of a piece with last week’s under-noticed decision in American Express Company v. Italian Colors, in which the Court upheld the right of corporations to insist on arbitration on an individual basis with the people it screws over even where only a class-action lawsuit is the only practical, economically viable way to enforce legal claims, for example in cases where a company over-charged a million people by $50 each, so that each individual case is too small for a lawyer to take it on. The Court ruled that it’s okay that “the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery.” You still have the legal right not to be screwed out of that $50; it’ll just cost you $1,000 to recover it. Scalia writes that the law doesn’t “guarantee an affordable procedural path to the vindication of every claim. ... the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.”

Similarly, the Voting Rights Act still exists, but the ability and procedures to make it actually effective is an optional extra as far as the Supreme Court is concerned.